PER SHRI. S.M. RATNAKAR – HON’BLE PRESIDENT
1) By this complaint the Complainant has prayed that it be held and declared that the Opposite Parties are guilty of deficiency of service and unfair trade practices as per the provisions of the Consumer Protection Act, 1986 (referred to as the Act). It is also prayed that the Opposite Parties be directed to pay Rs.5 Lacs alongwith interest @ 21% p.a. for travelling expense, cancellation charges, mental agony and legal expenses to the Complainant. It is also prayed that the Opposite Parties be directed to pay Rs.50,000/- towards legal and incidental expenses incurred by the Complainant.
2) According to the Complainant, he is consumer within the meaning of definition under Sec.2(1)(d) of the Act. The Opposite Parties are guilty of deficiency of service and unfair trade practice under Sec.2(1)(g) & (r) of the said Act. It is submitted that this Forum has jurisdiction to try and dispose of the present complaint under Sec.11 of the Act. According to the Complainant, the complaint is filed within the limitation period of 2 years as per the provisions of the said Act. The Opposite Party No.1 is a Company dealing with holiday exchange various clubs and resorts have affiliation with them. The Opposite Party No.2 is a Club affiliated with Opposite Party No.1. It is alleged that the Complainant had paid the money to the Opposite Party No.1 in Mumbai and therefore, this Forum has jurisdiction under Sec.11 of the Act. The copy of print out of web site of Opposite Party No.1 indicating the number of resorts and their locations is marked as Annexure ‘C-1’.
3) It is submitted that the Complainant was member of Opposite Party No.1 having Membership No.480143911 till the end of October, 2012. The copy of membership card and letter of renewal of membership dtd.13/01/09 is marked as Annexure ‘C-2’. According to the Complainant, he was member of Opposite Party No.1 for last 6 years and holding RCI Membership as per the number referred above.
4) According to the Complainant, he alongwith his family and friends was desirous of visiting Jagannath Puri in all there were 11 visitors including complaints and therefore, he applied for four rooms. The Opposite Party No.1 provided four rooms in Pearl Breach Club & Resort, situated at the Chariot Sipasirupali Puri, bearing Nos. 107, 112 to 114 from 04/12/09 to 11/12/09. The said booking was confirmed vide letter dtd.04/09/09 which is marked as Annexure ‘C-3’ colly. Thereafter, the Complainant booked 9 tickets from Mumbai to Bhubaneswar, dtd.04/12/09 and 05/12/09 and 2 visitors were to come from America for holidays in Puri. The Complainant also booked 11 return tickets of 11/12/09 from Bhubaneswar to Mumbai and paid Rs.30,240/- towards the consideration to Opposite Party No.1. The copies of invoices of the said tickets are marked as Annexure ‘C-4’ colly.
5) It is alleged by the Complainant that as per schedule on 04/12/09, he alongwith his wife Sangita reached Bhubaneswar by flight and then at Pearl Beach Club and Resort at about 3.00 p.m. On reaching there they found and surprised to see that the resort was under major repairs and renovation for last 1 year. On showing the booking confirmation for 4 rooms only 1 room which was even inhabitable condition was given to the Complainant for boarding. There were no catering services and during night the Complainant and his wife could not sleep due to constant noise pollution created by construction work going on the site. The Complainant took photographs of the site. There were e-mails messages between the parties on 04/12/09 and 09/12/09. The copies of which are marked at Annexure ‘C-5’ colly. The Complainant and his wife due to disastrous situation were forced to leave resort on 05/12/09 at 9.00 a.m. The Manager of the resort refused to given in writing their check in and check out timings.
6) It is alleged by the Complainant that through e-mail dtd.09/12/09 received to him from Opposite Party No.1 that it had cancelled the bookings confirmed at Pearl Beach Club & Resort and an amount of Rs.30,240/- paid towards the booking will be refunded to the credit card of the Complainant in next 15 – 20 days. It is alleged that the refund of nominal charges of Rs.30,240/- was made by the Opposite Party No.1 only when the Complainant sent number of e-mails to the said party. It is contended that the Opposite Party No.1 was totally silent and did not take any steps to find out as to what happened to the Complainant’s trip due to un-notified cancellation. The Complainant therefore, issued notice to the Opposite Party No.1 on 07/06/2010 to compensate the Complainant for hardship and inconvenience caused to him. The Opposite Party No.1 by reply dtd.14/07/2010 admitted their mistake and returned only the booking amount of Rs.30,240/-. The copies of the e-mails of Opposite Party No.1 and Complainant’s legal notice and reply of Opposite Party dtd.14/07/2010 are Annexure ‘C-6’ colly.
7) It is alleged by the Complainant that due to unwarranted cancellation of residential accommodation of the Complainant and his accompanied persons on the part of the Opposite Parties in all 11 persons had to suffer mental tension and agony and could not enjoy well planed holidays. The Complainant had to spent on booking tickets for 11 people for going and coming to Puri. They were required to pay extra monies to book their return tickets for 05/12/09. The Complainant has therefore, prayed the reliefs as mentioned in para 1 of this order.
8) The Opposite Party No.2 though served remained absent. The complaint therefore, proceeded ex-parte against Opposite Party No.2. The Opposite Party No.1 appeared and contested the claim by filing written statement. It is contended that the complaint is not maintainable as it is filed without any basis and jurisdiction. It is contended that this Forum has no jurisdiction to entertain, try or dispose off the complaint as the in the cause title the address of the Opposite Parties have been shown outside Maharashtra. It is submitted that the Complainant without seeking permission as per the provisions of Sec.11(2)(b) of the Act has filed the present complaint and as such, deserves no consideration. The Opposite Party No.1 tried to explain the relationship between the Complainant, Opposite Party No.1 and Opposite Party No.2 as per the contentions raised in para 6 of the written statement. It is contended that there was no deficiency of services and unfair trade practices on the part of Opposite Party No.1. The Opposite Party No.1 is not marketing agency for leisure and resort services. The Opposite Party No.1 being the Holiday Exchange Club/Company and facilitates the members of its affiliate resort only in the holiday exchange system. It provides exchange mechanism within its network to exchange time share weeks owned by its members with affiliated resorts. The Opposite Party did not indulge in making any false representation or promised something which did not exist. It is again contended that this Forum has no jurisdiction to try and entertain the complaint. It is submitted that many of the resort properties are owned and/or operated by Opposite Party No.2 has been affiliated with Opposite Party No.1 out of which the resort property Pearl Beach Club is affiliated with Opposite Party No.1 and the Opposite Party No.2 had entered into resort affiliation agreement dtd.13/05/97. The copy of which is marked Exh.‘A’. It is denied that any payment was accepted in Mumbai from the Complainant as the Opposite Party No.1 does not have any office in Mumbai.
9) The Opposite Party No.1 admitted that the Complainant holds RCI Membership and it was valid till October, 2012. It is contended that in terms of RCI Membership the confirmation of exchange was undertaken by Opposite Party No.1 and confirmed at Pearl Beach Resort for the period 04/12/09 to 11/12/09 based on the records made available by Opposite Party No.2 stating that the said resort was available for guest and only after confirming the same with the resort the Opposite
Party No.1 issued confirmation to the Complainant for the availability of the resort during the said period. It is the case of Opposite Party No.1 that it is merely time share provider and hence, no way responsible for the facilities at the resort provided by the Opposite Party No.2. According to the Opposite Party No.1, the Opposite Party No.2 did not provide any information regarding the renovation or repairs at the said resort and therefore, the Opposite Party No.1 confirmed the booking. The nature of the duties are detailed in the RCI terms of membership which the Complainant has singed & accepted. It is contended that it was the responsibility of the Opposite Party No.2 to upkeep the resort and the Opposite Party No.1 has no liability towards the Complainant including non availability of resort due to maintenance or otherwise. It is denied that the Complainant had contacted the Opposite Party on 04/12/09 or 05/12/09 for the alleged inconvenience caused to them. The Opposite Party No.1 submitted that if the Complainant had informed the Opposite Party No.1 immediately would have taken necessary action but the Complainant did not even called the Opposite Party No.1 on phone for the alleged inconvenience.
10) It is contended that once booking is confirmed for the members, the confirmation voucher is system generated and dispatched to the member. Simultaneously the confirmation details are also communicated to the resorts corporate office. It is contended that member is required to reconfirm with the resort over again for the booking details before checking with confirmation vouchers sent by RCI. It is contended that the Opposite Party No.1 had received e-mail from resort indicating that the resort is accepting bookings but no information whatsoever of any construction of the resort and therefore, the Opposite Party No.1 is not liable. According to the Opposite Party No.1, as a gesture of goodwill it cancelled the reservation and refunded the entire amount of Rs.30,240/- in the interest of the customer relations. It is thus, contended that in view of the terms of RCI Agreement the Opposite Party No.1 is not liable to pay any compensation as the Opposite Party is not guilty of deficiency in services to the Complainant.
11) The Complainant has filed his affidavit of evidence. One Santosh J. Shetty has filed his affidavit of evidence on behalf of Opposite Party No.1. Both the parties filed their written arguments. We heard oral argument of Ld.Advocate Smt. Shefali Bhasin for the Complainant and Shri. Rohit Pande i/b Singhania & Partners Firm, on behalf of Opposite Party No.1. We have perused the documents filed by both sides on record.
12) While considering the rival contention as regards the disputes raised in this complaint first of all it is necessary to be considered that the Opposite Party No.1 has contended that as it has an office at Bangalore and the Complainant has not obtained the permission as required under Sec.11(2)(b) of the Act. The complaint is liable to be dismissed for want of jurisdiction. The advocate for the Opposite Party No.1 has also submitted that in view of the contention raised by the Opposite Party No.1 the complaint is required to be dismissed. In this regard the Complainant has specifically come out with a case that he had paid the money to the Opposite Party in Mumbai and therefore, as per Sec.11 of the Act, this Forum has jurisdiction to try this complaint and no separate permission is required as contended by Opposite Party No.1. The Complainant has produced the copy of cash credit card statement for the period 16/08/09 to 15/09/09 as Annexure ‘C-7’ colly. of City Bank wherein the payment of Rs.7,560/- and Rs.22,680/- made to the Opposite Party No.1 is shown on 03/09/09. The said payment appears to have been made on the credit card possessed by the Complainant at Mumbai. The Opposite Party No.1 thereafter, on 04/09/09 issued confirmed booking of 4 rooms as alleged by the Complainant of the Pearl Club Resort for the period 04/12/09 to 11/12/09. The copies of the said documents placed on record by the Opposite Party No.1 with affidavit of evidence at Exh.‘E’. Thus, the case made out by the Complainant that the payment was made to the Opposite Party No.1 from Mumbai and the booking of the above resort was made from Mumbai and Opposite Party No.1 confirmed booking at Mumbai in our opinion is proved by the Complainant. As per Sec.11 of the Act, the jurisdiction of the District Forum also vests as per the provisions of Sec.11(2)(c) of the Act on the basis of cause of action, wholly or in part arise. In the present case from the document placed on record by the Complainant at Exh.‘C-7’ colly. and by his own affidavit he has proved that the cause of action regarding the complaint filed against the Opposite Parties arose within the jurisdiction of this Forum. We therefore, hold that this Forum has jurisdiction to try this complaint. The objection raised by the Opposite Party No.1 is rejected.
13) The contention raised by the Opposite Party that in view of RCI Membership Agreement between the Complainant and Opposite Party No.1 the claim made in the complaint against the Opposite Party No.1 cannot be granted on the ground that the Opposite Party No.1 only facilitates the members of its affiliate resorts in the holiday exchange system and therefore, in view of the Agreement between the Opposite Party No.1 & 2 and Complainant, the Opposite Party No.1 is not liable to pay any compensation cannot be accepted. In the letter dtd.13/01/09 issued by the Opposite Party No.1 which is Annexure ‘C-2’ the Opposite Party No.1 had given attractive offer “Take your family on standard exchanges at fabulous prices to over 4,000 RCI affiliated resort all over world”. Considering the said offer and as the Complainant had properly applied to the Opposite Party No.1 for providing resort facility as mentioned in the complaint and the Opposite Party No.1 had by its communication on or about 3 months prior to the visit of the Complainant and his family to the Pearl Beach Club and Resort gave confirmed booking of 4 rooms in the said resort and did not take care as to the suitability of inhabitability of the said resort and later on only refunded Rs.30,240/- after some days to the Complainant necessarily show that the act on the part of the Opposite Party No.1 was not proper and fair against the Complainant and there lies deficiency of service and unfair trade practice. The advocate for the Opposite Party No.1 though drew our attention to the agreement between Opposite Party No.1 & 2 and submitted that the Opposite Party No.1 is not responsible for the inconvenience caused to the Complainant at Jagannathpuri, we hold that the terms of the said agreement are not required to be gone into as the Opposite Party No.1 had issued confirmed booking slips for Pearl Beach Club and Resort for the Complainant as per Exh.‘E’ to the affidavit of Opposite Party No.1. We hold that it was the responsibility to take care of the Complainant by providing the 4 rooms at the above resort during the period 04/12/09 to 11/12/09 and that too in good condition. The Opposite Party No.1 in the written statement also admitted that the Opposite Party No.1 received e-mail from the resort indicating that the resort is accepting bookings but no information whatsoever, of any construction of the resort and tried to deny its liability in our view the said defence raised by the Opposite Party No.1 cannot be accepted. It is pertinent to note that the Opposite Party No.1 by its e-mail dtd.09/12/2009 in reply to the correspondence made by the Complainant by his e-mails has specifically admitted as under –
“Kindly accept our sincere apologies for all the inconvenience that you had to face during you r stay at The Pearl Beach resort. We have forwarded your feedback to our concerned offices who shall look into the same immediately. RCI is your holiday exchange club. I do hope this recent experience will not discourage you from venturing out on more RCI holidays in the future. Further to our telephonic discussion we would like to inform you that we have cancelled your bookings confirmed at THE PEARL BEACH CLUB AND RESORT for check in date 4th December, 2009 and an amount of Rs.30,240/- paid towards the booking has refunded to your credit card within the next 15 to 20 business days.”
The Opposite Party No.1 in written statement has further admitted that the Opposite Party No.2 was under an obligation to undertake comprehensive maintenance of the resort but with prior intimation to the Opposite Party No.1. The fact the Opposite Party No.2 has not intimated Opposite Party No.1 of their intention to carryout repairs or not to confirm any booking in respect of the said resort and hence, Opposite Party No.1 has already taken actions against Opposite Party No.2 independently. In view of these facts it is proved by the Complainant that the Opposite Parties have adopted unfair trade practice against the Complainant which amounts to deficiency in service on their part. We therefore, hold that in the present case both the parties are liable to compensate the Complainant the air ticket charges as detailed in Annexure ‘C-4’ colly. to the tune of Rs.37,600/- as well as taxi conveyance and out of pocket expenses incurred by the Complainant to the tune of Rs.5,000/-. The Complainant has prayed for compensation of Rs.4 Lacs towards mental stress, agony etc. we are of the view that the said claim is much exaggerated. In our view an amount of Rs.50,000/- on that count would be just and proper. The Complainant has claimed an amount of Rs.35,000/- towards legal fees and out of pocket expenses of Rs.5,000/-. We are of the view that an amount of Rs.10,000/- would be proper amount towards such expenditure. Considering the aforesaid amounts both the Opposite Parties are jointly and severally liable to pay total amount of Rs.1,02,600/- to the Complainant with interest @ 6% p.a. from the date of filing of the complaint i.e. 05/04/2011 till its realization.
14) The authority relied by the advocate for the Opposite Party No.1 Dalmiya Resort International V/s. Dr. Vandana Gupta, I (1997) CPJ 63 NC, in our view is not applicable to the facts of this case. The authorities relied by the Complainant in the case of T.V. Sunderason V/s. Sterling Holiday Resorts, III (2003) CPJ 154 (NC) and Sterling Holidays Resorts V/s. Smt. Sunila Malik, II (2002) CPJ 389 of Himachal Pradesh State Commission are also not applicable to the facts of this case. In the result the following order is passed –
O R D E R
i. Complaint No.111/2011 is partly allowed against Opposite Parties.
ii. It is hereby declared that the Opposite Parties No.1 & 2 are guilty of deficiency in services and unfair trade practices as per the provisions of the Consumer Protection Act, 1986.
iii. Opposite Parties No.1 & 2 are directed to pay jointly and/or severally Rs.1,02,600/- (Rs. One Lac Two Thousand Six Hundred Only) to the Complainant with interest @ 6% p.a. from 05/04/2011 i.e. from the date of filing of this complaint towards all the claims made complaint.
iv. The Opposite Parties No.1 & 2 are directed to comply with the above order within one month from the date of service of this order.
v. Certified copies of this order be furnished to the parties.
